Fish-Kill Lawsuit Swims Across Country

SAN FRANCISCO (CN) – Environmentalists have transferred across the country a federal lawsuit that claims Uncle Sam is allowing billions of fish to be killed every year by power plants’ water cooling intake systems. The Sierra Club and seven other groups voluntarily dismissed the lawsuit they filed against the National Marine Fisheries Service and the U.S. Fish and Wildlife Service in November 2014. U.S. District Judge Edward M. Chen signed the motion on May 28. Plaintiffs’ attorney Greg Wannier told Courthouse News that the case is still active, but has been transferred to the 2nd Circuit. “Jurisdictionally it’s complicated. Technically it’s a dismissal, but effectively it’s a transfer,” Wannier said. The same parties remain and the same claims, including parties from previous 2nd Circuit cases, he said. “We believe it makes sense to have all issues heard by the same court,” Wannier said. The Fish and Wildlife Service declined comment. The plaintiffs last year challenged a biological opinion and incidental take statement in support of the U.S. Environmental Protection Agency’s new Clean Water Act rule, which authorized water cooling intake systems at power plants. The groups challenged the surveys, claiming that the systems kill billions of fish and hundreds of other protected species each year. “These systems draw and chemically treat water, run the water through the systems of pipes to absorb waste heat from industrial operations, and then discharge the water back into the waterbody. In doing so, they kill or seriously injure aquatic organisms by crushing larger fish and other animals against the system intake screens (‘impingement’) and pulling eggs, larvae, and smaller organisms through the system (‘entrainment’),” according to the original complaint. Sturgeon, salmon, sea turtles and sea lions are among the federally endangered or threatened species harmed by these systems, the groups claimed. The new EPA rule requires permitting agencies under the National Pollutant Discharge Elimination System to choose mitigation measures to reduce animal fatalities at facilities that use more than 2 million gallons of water each day in their cooling systems. Though the defendants found that the rule would not significantly harm endangered wildlife or their critical habitat, the environmentalists claimed they relied on inadequate analysis and assumptions to reach that conclusion. Joining the Sierra Club as plaintiffs are the Center for Biological Diversity, the Waterkeeper Alliance, the California Coastkeeper Alliance, Riverkeeper, the Louisiana Environmental Action Network, Suncoast Waterkeeper, and Humboldt Baykeeper.